O.C.G.A.
O.C.G.A.

O.C.G.A. § 16-5-42 (2019)

False imprisonment under color of legal process

✓ O.C.G.A. — 2019 edition (Public.Resource.Org Release 73)
Code text and O.C.G.A. statutory annotations on this page reflect the 2019 Official Code of Georgia Annotated (Public.Resource.Org Release 73, 2019-08-21; public domain per Georgia v. Public.Resource.Org, 2020). The Syfert case-law annotations in Notes of Decisions, below, are current.
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When the arrest, confinement, or detention of a person by warrant, mandate, or process is manifestly illegal and shows malice and oppression, an officer issuing or knowingly and maliciously executing the same shall, upon conviction thereof, be removed from office and punished by imprisonment for not less than one nor more than ten years.

History

Laws 1833, Cobb’s 1851 Digest, p. 788; Code 1863, § 4265; Code 1868, § 4300; Code 1873, § 4366; Code 1882, § 4366; Ga. L. 1895, p. 63, §§ 1, 2; Penal Code 1895, § 108; Penal Code 1910,

§ 108; Code 1933, § 26-1503; Code 1933, § 26-1309, enacted by Ga. L. 1968, p. 1249, § 1.

Annotations

Cross references. - Civil action for false imprisonment, § 51-7-20 et seq.

JUDICIAL DECISIONS Law does not presume malice against judicial officer because the officer renders an illegal judgment, or because, in the discharge of the officer’s official functions, the officer does an illegal act. Campbell v. State, 48 Ga. 353 (1873). Justice of peace indicted under O.C.G.A. § 16-5-42 is not entitled to appear before grand jury. - Justice of the peace indicted for false imprisonment under color of legal process is not entitled to the right of appearance and of being heard before the grand jury at the time

the true bill is found. Campbell v. State, 48 Ga. 353 (1873). When defendant was arrested without a warrant, a charge on O.C.G.A. § 16-5-42 was not appropriate, and the refusal to give the charge was not error. Parrish v. State, 182 Ga. App. 247, 355 S.E.2d 682 (1987). Cited in Mastroianni v. Deering, 879 F. Supp. 1245 (S.D. Ga. 1994); Mastroianni v. Bowers, 160 F.3d 671 (11th Cir. 1998); Tesler v. State, 295 Ga. App. 569, 672 S.E.2d 522 (2009).

RESEARCH REFERENCES Am. Jur. 2d. - 46 Am. Jur. 2d, Judges, § 77. C.J.S. - 35 C.J.S., False Imprisonment, § 4 et seq. ALR. - Civil liability of judicial officer for false imprisonment, 13 A.L.R. 1344; 55 A.L.R. 282; 173 A.L.R. 802. Malice and want of probable cause as elements of action for false imprisonment, 19 A.L.R. 671; 137 A.L.R. 504. Action for malicious prosecution or false arrest based on extradition proceeding, 55 A.L.R. 353. Justification in action for false imprisonment by proof of existence of ground other than that on which arrest was made, or one of several grounds on which it was made, 64 A.L.R. 653.

Delay in taking before magistrate or denial of opportunity to give bail as supporting action for false imprisonment, 79 A.L.R. 13. Malice and want of probable cause as element or factor of action for false imprisonment, 137 A.L.R. 504. Liability for false arrest or imprisonment under a warrant as affected by mistake as to identity of person arrested, 10 A.L.R.2d 750; 39 A.L.R.4th 705. Liability of police or peace officers for false arrest, imprisonment, or malicious prosecution as affected by claim of suppression, failure to disclose, or failure to investigate exculpatory evidence, 81 A.L.R.4th 1031.

Notes of Decisions
Cited in 6 cases (1 in the last 5 years), 1987–2022 · leading case: Tesler v. State, 672 S.E.2d 522 (Ga. Ct. App. 2009).
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Tesler v. State, 672 S.E.2d 522 (Ga. Ct. App. 2009). · cites it 4× “Arthur Tesler was indicted on charges of violating his oath as a public officer (OCGA § 16-10-1) (Count 1); making false statements to a state or local government agency or department (OCGA § 16-10-20) (Count 2); and false imprisonment under color of law (OCGA § 16-5-42) (Count…”
Mastroianni v. Bowers, 160 F.3d 671 (11th Cir. 1998). · cites it 3× “The statute reads in part: When the arrest, confinement, or detention of a person by warrant, mandate, or process is manifestly illegal and shows malice and oppression, an officer issuing or knowingly and maliciously executing the same ■ shall, upon conviction thereof, be…”
Parrish v. State, 355 S.E.2d 682 (Ga. Ct. App. 1987). · cites it 2× “OCGA § 24-4-9; OCGA §§ 16-2-20 and 16-2-21. 6. Defendant complains of the trial court’s failure to give three requested jury charges.”
Scott v. Superior Court of Bulloch Cnty. (S.D. Ga. 2022). · cites it 6× “20 at 3-4 (citing O.C.G.A. § 16-5-42). The statute in question is a criminal statute.”
Mastroianni v. Deering, 879 F. Supp. 1245 (S.D. Ga. 1994). · cites it 10× “Count I charged Mastroianni with the offense of False Imprisonment Under Color of Legal Process, O.C.G.A. § 16-5-42, for allegedly planting drugs on Leo Polumbo and then illegally arresting him.”
Mastroianni v. Bowers, 160 F.3d 671 (11th Cir. 1998). · cites it 3× “Mastroianni was arrested for violating O.C.G.A. § 16-5-42 for allegedly planting drugs on and falsely arresting Leo Polumbo.”
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